Posts tagged as:

Eastern District of Texas

  • “Our mangled patent system,” Cato podcast [with Eli Dourado of the Mercatus Center] Critique of federal circuit [Dourado at Cato Unbound]
  • Since SCOTUS’s June decision in Alice v. CLS Bank, many courts have struck down software patents as too-abstract [Timothy Lee, Vox]
  • Iqbal-Twombly principles as remedy for patent trollery? [Daniel Fisher]
  • ISP resists mass copyright enforcement enterprise’s demand for customer list [DSL Reports]
  • Win for Personal Audio in E.D. Tex.: “Jury finds CBS infringes podcasting patent, awards $1.3 million” [ArsTechnica]
  • “Premier League Uses Copyright To Pull Down YouTube Video Of Professor Advocating For Stronger Copyright For Premier League” [Mike Masnick, Techdirt]
  • A new leaf? “Silicon Valley’s Most Hated Patent Troll Stops Suing and Starts Making” [Business Week]

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September 2 roundup

by Walter Olson on September 2, 2014

  • Police have traced the crime wave to a single micro-neighborhood in the California capital [Sacramento Bee]
  • “Adam Carolla Settles with the Patent Trolls” [Daniel Nazer/EFF, Reason, related eight days earlier and previously] eBay takes on Landmark in the E.D. of Texas [Popehat]
  • Frank Furedi on law and the decline in childrens’ freedom to roam [U.K. Independent]
  • On “ban the box” laws re: asking about job applicants’ criminal records, it’s sued if you do, sued if you don’t [Coyote]
  • Fake law firm websites in U.K. sometimes parasitize the real ones [Martha Neil, ABA Journal]
  • What C. Steven Bradford of the blog Business Law Prof reads to keep up (and thanks for including us on list);
  • As applications to renounce U.S. citizenship mount, many related to FATCA, our government hikes fee for doing so by 422% [Robert Wood, Forbes]

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Mike Masnick on a jury verdict against Newegg: “Having Whit Diffie (who invented public key cryptography) and Ron Rivest (who basically made it practical in real life) present on your behalf, showing that they did everything prior to Jones’ patent, while further showing that what Newegg was doing relied on their work, not Jones’, should have ended the case. But…” [TechDirt; Joe Mullin, Ars Technica]

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Backed by big-firm lawyers, a non-producing company that claimed its patents underlay the online shopping cart sued dozens of retailers and extracted tens of millions of dollars in settlements and verdicts in the Eastern District of Texas and elsewhere — until an appellate ruling declared its patents invalid. Despite its absence of products, the company’s website offered “tech support.” [Joe Mullin, Ars Technica]

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  • Deborah Gerhardt on the ruling in favor of an artist who paints Crimson Tide sports highlights without University of Alabama say-so [Deborah Gerhardt/Eric Goldman, earlier here, etc.]
  • Posner throws out Apple/Motorola case [Tabarrok, more]
  • Joinder of defendants allegedly violating same patent: “D.C. Court Ruling Makes Life Tougher For Patent Trolls” [Daniel Fisher, Forbes]
  • “Google, AOL Face Patent Suit Over ‘Snippet’ Search Results, Ads” [Justia]
  • “Absurd patent of the day, Apple re: wedge-shaped computers” [Tabarrok]
  • “Defensive Patent License: judo for patent-trolls” [Doctorow/BB]
  • Why are copyright terms so long? One theory [Julian Sanchez]

September 16 roundup

by Walter Olson on September 16, 2011

  • House Judiciary holds hearing on asbestos-claim fraud and abuse, with Prof. Brickman headlining [Main Justice, Legal NewsLine, WSJ law blog, PoL, Brickman testimony]
  • Endangered species habitat in Nevada: “Elko County wants end to 15-year-old trout case” [AP]
  • “Why is the Eastern District of Texas home to so many patent trolls?” [Ted Frank/PoL, more] Tech giants say multi-defendant patent suits place them at disadvantage [WSJ Law Blog] Plus: “Patent company has big case, no office” [John O'Brien, Legal NewsLine]
  • Lawsuit settlement and the lizard brain [Popehat]
  • “U.S. Commission on Civil Rights Looks Into Eminent Domain Abuses” [Kanner, Somin] U.K.: “Squatters could be good for us all, says judge in empty homes ruling” [Telegraph]
  • Madison mob silences Roger Clegg at news conference where he releases new study of UW race bias [ABA Journal, Althouse]
  • Life in Australia: “Another motorized-beer-cooler DUI” [Lowering the Bar]

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East Texas patent venue

by Walter Olson on November 18, 2010

The Federal Circuit appears to be cracking down on a notorious symbol of forum-shopping, according to Richard Samp at Washington Legal Foundation’s Legal Pulse.

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Explaining the role of the nation’s most famous venue for patent litigation [Brad Feld, Tech Review]

October 12 roundup

by Walter Olson on October 12, 2009

  • Speech-curbing proposals continue to get polite academic reception: NYU’s Jeremy Waldron, big advocate of laws to curb “hate speech”, delivered Holmes Lectures at Harvard this past week [HLS, schedule]
  • Lawsuit over collectible baseball hit into stands by Phillies’ Ryan Howard, his 200th career homer [Howard Wasserman, PrawfsBlawg; NJLRA]
  • Orchid-importer prosecution a poster case for the evils of overcriminalization? Maybe not [Ken at Popehat]
  • Texas State Fair and city of Dallas don’t have to allow evangelist to distribute religious tracts inside the fair, judge rules after three years [Dallas Observer blog]
  • Drug maker: FDA’s curbs on truthful promotion of off-label uses impair our First Amendment speech rights [Beck and Herrmann and more, Point of Law and more]
  • Did plaintiff Eolas Technologies go to unusual lengths to ensure Eastern District of Texas venue for its patent litigation? [Joe Mullin, IP Law and Business via Alison Frankel, AmLaw]
  • Update: “Lesbian Denied Infertility Treatment Settles Lawsuit” [San Diego 6, earlier]
  • Even in the Ninth Circuit, “psychological injury resulting from a legitimate personnel action” is not compensable [Volokh]

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As the East Texas jury was set to begin deliberations. Per Joe Mullin’s must-read coverage at IP Law and Business, Rick Frenkel’s lawyer-critical blog is now entirely closed down even to private readers except as an archive for the use of lawyers in the related litigation. More: Mullin, Sept. 18 (Frenkel “wouldn’t have the financial resources to defend himself” had his employer Cisco not covered his legal costs), Sept. 21 (“You don’t wrestle with a snake, you cut its head off,” said plaintiff T. John (“Johnny”) Ward, Jr. “We shut the blog down, is what we did.”)

And did a small defendant wind up being added to the list of those sued in an intellectual-property suit just in order to secure venue in the plaintiff-beloved Eastern District of Texas? [Ars Technica]

The Eastern District of Texas strikes again. [DailyTech, Concurring Opinions, Legal BlogWatch, WSJ Law Blog, earlier]

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July 21 roundup

by Walter Olson on July 21, 2009

  • “Plaintiffs’ Attorneys to Get $800,000 in Preliminary Settlement, Class Members Receive Zero” [Calif. Civil Justice covering Bluetooth settlement in which Ted was objector; earlier here and here]
  • “Lawyer Jailed for Contempt Is Freed After 14 Years” [Lowering the Bar, earlier]
  • Money makes the signals go ’round: another probe of red-light cameras yields few surprises [Chicago Tribune, Chicago Bungalow, Bainbridge on Washington, D.C.]
  • Previously little-known company surfaces in E.D. Tex. to claim Apple, many other companies violate its patent for touchpads [AppleInsider via @JohnLobert]
  • Child endangerment saga of mom who left kids at Montana mall is now a national story [ABC News; earlier post with many comments; Free Range Kids and more]
  • Meet Obama Administration “special adviser on ‘green’ jobs” Van Jones ["Dunphy", McCarthy at NRO "Corner"]
  • Irrationality of furloughs at University of Wisconsin should provide yet another ground to question New Deal-era Fair Labor Standards Act [Coyote]
  • Australia’s internet blacklist is so secret you can’t even find out what sites are on it [Popehat - language] Oz to block online video games unsuitable for those under 15 [BoingBoing]

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A steer named Tivo

by Walter Olson on June 26, 2009

More from notorious patent venue E.D. Tex.: litigants and lawyers are reaching out to buy sponsorships and other sources of presumed goodwill with the heavily rural jury pool, thus resulting in “Samsung Stagecoach Days” and the purchase of prize cows by faraway patent holders. [Elinson/The Recorder, Frankel/AmLaw]

Both sides actually manufacture products and everything.

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There was an auto accident in Dallas; plaintiffs sued Volkswagen in Marshall, Texas, in the notoriously plaintiff-friendly Eastern District of Texas, which has a hugely abnormal number of product liability cases—17% of all federal automobile product liability lawsuits in the United States. Let us quote from In re Volkswagen of America, Inc., 506 F.3d 376 (5th Cir.2007), earlier discussed on POL Nov. 27 and Feb. 23:

Volkswagen moved to transfer venue to the Dallas Division of the Northern District of Texas (“Dallas Division”). Volkswagen asserted that a transfer was warranted as (1) the Volkswagen Golf was purchased in Dallas County, Texas; (2) the accident occurred on a freeway in Dallas, Texas; (3) Dallas residents witnessed the accident; (4) Dallas police and paramedics responded and took action; (5) a Dallas doctor performed the autopsy; (6) the third-party defendant lives in Dallas County, Texas; (7) none of the plaintiffs live in the Marshall Division; (8) no known party or significant non-party witness lives in the Marshall Division; and (9) none of the facts giving rise to this suit occurred in the Marshall Division.

The district court refused to transfer to the Northern District, VW sought mandamus, and got it on the second try, with the Fifth Circuit ordering transfer. (See also John Council, “5th Circuit Restricts Trial Courts’ Discretion in Venue Motions”, Texas Lawyer, Nov. 5; John Council, “5th Circuit Case Could Reduce Product Liability Caseload in Texas’ Eastern District”, Texas Lawyer, Aug. 7).

In February, however, the Fifth Circuit vacated the decision, and granted en banc rehearing. Argument is Thursday in New Orleans, and the decision will determine whether the Fifth Circuit will tolerate forum shopping in the federal courts. (Michelle Massey, “Appeals court scheduled to hear arguments over forum shopping”, SE Texas Record, May 20). The case is of special importance to the patent bar, given the fact that Marshall, Texas, has become the unlikely capital of United States patent litigation. Blog coverage: PatentlyO, Prior Art.

En banc briefs in 07-40058, In re Volkswagen AG:

Department of Strangely Shifting Academic Positions: In December 2007, law professor Georgene Vairo wrote a LexisNexis Expert Commentary on the Volkswagen case explaining its consistency with Supreme Court precedents, and writing

The Fifth Circuit is not alone in permitting the use of mandamus in limited circumstances. For example, in Lemon v. Druffel, 253 F.2d 680 (6th Cir. 1958), a case decided shortly after Congress codified § 1404(a), the Sixth Circuit ruled that mandamus was an appropriate remedy to test a district court’s discretion on a motion to transfer.

In April 2008, she signed on to a brief taking precisely the opposite position, which does not cite Lemon. Curious.

Overlawyered has more on the Eastern District of Texas, and on Judge T. John Ward.

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Just as I was about to say I needed to revise my top-ten blog list to include the excellent anony-blogger Patent Troll-Tracker, I learned from today’s Recorder and WSJ that he has revealed himself as Rick Frenkel, Cisco IP attorney.

When I started the blog, I did so mainly out of frustration. I was shocked to learn that a huge portion of the tech industry’s patent disputes were with companies that were shells, with little cash and assets other than patents and a desire to litigate, and did not make and had never made any products. Yet when I would search the Internet for information about these putative licensors, I could find nothing. I was frustrated by the lack of information, and also by the vast array of anti-patent-reform bloggers out there, without a voice supporting what I did believe and still believe is meaningful reform.

(For the record, I liked the blog even before they praised me.) Plaintiffs’ attorney Ray Niro had put a bounty on the identity of the Troll Tracker, who had been critical of Niro’s tactics (as have Walter and I). Frenkel is considering shutting down his blog now that he is out of the closet; one hopes someone else picks up the torch, because he was performing a valuable service, to the extent that I had limited my blogging about it because he had the subject-area covered so well.

I missed the debate in November among Dennis Crouch, Michael Smith, and Frenkel on whether the Eastern District of Texas is “waning” as a magnet jurisdiction for patent plaintiffs (May 2006, Dec. 2005, Jan. 2005), or I might have made reference to it in my latest Liability Outlook on patent reform. Frenkel seems to have the best of that debate, and follows up:

Let’s highlight one really outstanding statistic from November: The number of defendants sued in the Eastern District of Texas in November 2007: 244. The number of defendants sued in Los Angeles, San Francisco/Silicon Valley, New York City, Chicago, Delaware, and New Jersey combined in November 2007: 162.

Patent lawyers often seem to be of a different stripe than other lawyers, and there is a similar patent-law-blogging community largely separate from the other law-bloggers. The commenters go mad at Crouch’s blog over the Frenkel revelation because Cisco is a strong patent reform supporter. Elsewhere: IPBiz; TechDailyDose; NetworkWorld; 271Blog; Mises Blog; and the anti-reform Patent Prospector.

The Patent Reform Act of 2007

by Ted Frank on February 22, 2008

My latest Liability Outlook is on the Patent Reform Act of 2007:

Despite some in the media calling patent reform dead, on January 24, 2008, the Senate placed S. 1145, the Patent Reform Act of 2007, on the general calendar. The next few weeks will be critical to the legislation, which the House passed in September. Although much of the discussion has focused on the different perspectives and concerns that the high tech and the biotech/pharma industries have about the legislation, the fact remains that the patent litigation system is broken. Congress should make every effort to fix it by writing into this legislation reasonable formulas for damage awards and venue rules that discourage forum-shopping. …

Affiliates of Erich Spangenberg’s Plutus IP have sued 476 different defendants in 42 lawsuits. The vast majority of those lawsuits allege infringements of patents that Plutus IP purchased for $1,000. The use of invalid patents in litigation is more than theoretical. Philip Jackson sued his attorneys, Chicago plaintiffs firm Niro, Scavone, Haller & Niro, for malpractice after his $12.1 million jury verdict against Glenayre Electronics Inc. was reduced to under $3 million; Niro challenged the malpractice suit by claiming that th e patent Jackson had successfully enforced was invalid. In 2006, approximately 6,000 defendants were sued in 2,800 patent cases; in 2007, the six thousand mark was reached in early October, implying a 30 percent increase in patent litigation in a single year. Such litigation stifles substantial technological innovation. Patent trolls claim to block entire fields, and one cannot hope to innovate in these areas without the financial capital to handle the threat of patent litigation. IBM has 370 corporate patent attorneys, not just to avoid the pitfalls of infringement, but to create a patent portfolio that can provide counterclaims (or cross-licensing opportunities) if a commercial entity were to sue them for infringement. Since the late 1990s, patent litigation costs have outstripped patent profits.